Prop. 35 tackles child sex-trafficking

Nine years ago, the FBI identified San Diego as a “High Intensity Child Prostitution Area.” Child prostitution is also known as commercial sexual exploitation of children, in which a child is exploited for sexual purposes to financially benefit one or more parties. Experts estimate that the average age of children being prostituted in San Diego is between 14 and 18 years old, and girls as young as 12 are being prostituted on National City Boulevard and El Cajon Boulevard.

Proposition 35 or “Californians Against Sexual Exploitation Act” (CASE Act) proposes new state legislation to strengthen laws to combat human and child sex trafficking, and stiffen penalties for traffickers. Prison time is increased for child sex traffickers, as well as fines up to $1 million for anyone who “causes, induces, persuades or attempts to cause, induce or persuade, a person who is a minor” to engage in a commercial sex act. Jail time increases 15 years to life when offenders use force. Prop. 35 requires human trafficking training for law enforcement and would require sex traffickers to register as sex offenders. Criminal defense counsel can no longer use a victim’s sexual history to impeach or prove criminal liability of trafficked victims.

Prop. 35 has been endorsed by elected officials and the California Democratic Party, the California Republican Party, the California Teachers Association, and hundreds of organizations including law enforcement organizations, advocacy and faith organizations and local retailers and service organizations. The statute is not without criticism, however.

First, according to guidelines authored by the Polaris Project, CASE contains problematic language that is out of line with federal legislation. Among instances, CASE does not augment the term “commercial sex act” with “sexually explicit performance,” a clause covering a broader range of acts including forcing trafficked women into “exotic dancing.” CASE’s definition of “coercion” is overly narrow, lacking reference to blackmail, holding of passports/immigration/government identification documents, or threatening to cause financial harm. Also no mention is made to criminal liability of business entities – the support structure of trafficking networks. For example in San Diego County, prostitution of children and adults is moving from the street into hotels.

Second, aspects of Prop. 35 actually make it more difficult to prosecute traffickers. For one thing, Penal Code 266 – Pimping and Pandering – is not included in the proposed statute. Pimps are traffickers, but current penalties under 266 are much lighter; jail time between three, six and eight years for convictions involving minors, or a fine not exceeding $10,000.

Another difficulty for prosecutors involves changes to the California laws that govern how and what evidence can be received by the court. Section 1161 (a) potentially bars misdemeanor prostitution prosecutions that permit law enforcement, in partnership with victim service organizations, to remove victims from their traffickers. Section 1161 (b) prevents prosecutors from using past commercial sex history to attack the credibility of a victim. This sounds reasonable enough, however, victims often recant on the stand when they have to speak the truth in front of their trafficker. Evidence of exploitation often emerges when detectives “attack the credibility” of the story that “nothing happened” by referring to prior arrests, previous statements to detectives and other evidence of commercial sex acts.

Another objection centers on sentencing anomalies within the statute. On one hand, in cases not involving force or coercion, penalties for human trafficking of minors are actually lighter than human trafficking of adults. On the other hand, 15 years to life without a completed commercial sex act seems draconian to some; a punishment commensurate with second-degree murder and a highly aggravated forcible sex crime. Finally, some worry that adding a new group of offenders who must register as sex offenders will strain law already scarce resources.

Prop. 35 is a leap forward in state legislation to tackle child-sex trafficking, but could it have been stronger had it involved a greater constituency in its design? Since the 1990s, best practices in drafting legislation have suggested collaborative approaches. The CASE Act was developed through collaboration between nonprofits California Against Slavery (CAS) and the Safer California Foundation. However, the range of expert perspectives extends far beyond nonprofit advocacy organizations and victim services, to state and local prosecutors, state and local law enforcement, Homeland Security, Health and Human Services, school officials, community members, and academic researchers. Suggested for the next round of anti-trafficking legislation is a wider collaborative process that taps diverse wellsprings of experience and wisdom.

Carpenter is an assistant professor at University of San Diego’s School of Peace Studies, and a member of the San Diego Regional Human Trafficking and Commercial Sexual Exploitation of Children Advisory Council.